2.The
appellant, Van Vibhag Karamchari Griha Niraman Sahkari Sanstha Maryadit, Indore
(hereinafter referred to as `the appellant'), was constituted and registered under
the Madhya Pradesh Cooperative Society Act, 1960 on 26.5.1970, for the purpose
of Providing residential plots to the employees of the forest department of
Madhya Pradesh Government.

3.On
28.3.1974, three farmers, namely Ramesh Chander (hereinafter referred to as
`the first respondent'), Mahavir Singh and Chunni Lal, entered into an oral agreement
with the appellant to sell their respective land measuring 2.039 hectares bearing
khasra No. 203/2, 1.019 hectares bearing khasra No. 203/1 and 1.602 hectares
bearing khasra No. 204/1, situated at village Chitawad tehsil and district Indore,
to the appellant at Rs.2 lacs per hectare. On 25.1.1975, all the three farmers
jointly received Rs.2000/- as earnest money as per the agreement dated
28.3.1974 and delivered possession of the said land to the appellant. The
agreement to sell was executed and signed by all three farmers on 31.3.1976.
The present dispute only concerns Ramesh Chander, i.e. the first respondent.

4.The
Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter the Ceiling Act) was
passed by the Central Government and enforced by the Government of Madhya Pradesh
(MP) on 9.9.1976. The first respondent filed details of the total vacant land possessed
by him before the competent authority under the Ceiling Act on 24.12.1979 and
also filed an exemption application under Section 20 of the Ceiling Act, in
which he specified that land bearing khasra No. 203/2 was sold to the
appellant.

5.The
first respondent also submitted his affidavit to the appellant on 23.7.1982
that he had sold his agricultural land bearing khasra No. 203/2 to the appellant
for consideration and that possession of the same had been handed over. Full
payment of the sale consideration amounting to Rs.3,20,000/- was made to the
first respondent on 28.8.1984.

6.On
26.4.1985, the Indore Development Authority declared a Scheme over including
the disputed land. Accordingly, the Government of M.P. issued a notification under
Section 4(1) of the Land Acquisition Act, 1894 with respect to the said land. On
17.6.1985, the first respondent filed an application to the District Collector,
Indore stating that he had sold the disputed land to the appellant and
possession of the same had been handed over to the appellant, and that the
first respondent did not have any right regarding the acquisition of the said
land or to get compensation for the same. All proceedings regarding acquisition
were to be referred to the appellant and he prayed that the said land be
exempted from acquisition.

7.Thereafter,
notification under Section 6 of Land Acquisition Act was published on
11.6.1986.

8.The
first respondent had filed another affidavit dated 16.12.1986 stating that the
appellant was in possession of the land in question.

9.On
5.1.1987, the appellant filed a writ petition (No.39/1987) along with the first
respondent in the High Court, for quashing the acquisition of the disputed
land. The High Court issued an ad-interim injunction on 15.1.1987 staying
further proceedings before the Land Acquisition Officer.

10.The
first respondent, on 3.2.1991, issued a public notice in a local daily, called
Dainik Bhaskar, that he is the owner and in possession of the disputed land,
and any action taken by the appellant over such land would not affect the
rights of ownership and possession of the first respondent over the land. He
also stated that the agreement to sell and Power of Attorney in favour of the
appellant stood cancelled. Immediately, thereafter, the appellant filed a suit
on 11.2.1991 (COS No. 19A/1990) for declaration of ownership of the appellant
Society in suit land and for permanent injunction in the court of 3rd Civil
Judge, Class II, Indore. The suit was subsequently transferred to the 7th Civil
Judge, Class II, Indore as COS No. 603A/1992.

11.Appellant's
prayer for temporary injunction made in the suit was dismissed by the Trial Court
on 8.10.1998 by a detailed reasoned order and in that order it has been
mentioned by the learned Trial Judge, that the appellant (plaintiff in the
suit) failed to make out any strong prima facie case and that the suit was not
filed for relief of specific performance. (Para 48 of the order).

12.On
14.1.1994, when the writ petition before the High Court came up for hearing, the
Indore Development Authority declared that it had withdrawn its scheme, and therefore,
the High Court allowed the writ petition and quashed the notification under the
Land Acquisition Act. The High Court ordered the land be reverted to the
original owner as the notification under challenge was quashed.

13.On
3.1.2000, Samroj Khan, 7th Civil Judge, Class II and Judicial Magistrate, 1st
class, filed a complaint before the Chief Judicial Magistrate (CJM), 1st Class,
Indore, under Section 340 of the Code of Criminal Procedure, 1973, on the
ground that the first respondent had committed offences under section 199/193
of the IPC, and requested the CJM to prosecute him for such offences. The said
complaint is still pending.

14.The
Parliament enacted the Urban Land (Ceiling and Regulations) Repeal Act, 1999
and the Legislative Assembly of Madhya Pradesh adopted it by a resolution dated
17.2.2000. Accordingly, the Ceiling Act stood repealed in Madhya Pradesh with
effect from 17.2.2000.

15.Thereafter,
appellant by a legal notice dated 4.6.2000 called upon the first respondent to
execute and register the sale deed of the disputed land in favor of the appellant
and failing which the appellant threatened to file a suit for specific performance.
The first respondent, by a legal notice dated 17.6.2000, refused to act in
terms of the notice of the appellant dated 4.6.2000. In the meantime the appeal
filed by the appellant against the order dated 8.10.1998 passed by the Trial
Court refusing to grant temporary injunction, was also dismissed by the order dated
15.5.2002, and the findings reached by the Trial Court in its order dated 8.10.1998
were affirmed by the First Additional District Judge, Indore. The appellant did
not carry the challenge any further against such concurrent refusal of its prayer
for temporary injunction.

16.Then
the appellant moved on 16.12.2002 an application for amendment of the pleadings
under Order 6 Rule 17 of CPC in the pending civil suit for inclusion of the
relief of specific performance of contract. The same was allowed by the order
dated 10.3.2003 and the amendment was accordingly incorporated on 17.3.2003.

17.The
first respondent filed an application under Section 114 and Order 47 Rule 1 CPC
for a review of the order dated 10.3.2003. The same was dismissed by Court on
23.6.2003. The plaint was returned to the appellant for filing the same in the Court
of competent jurisdiction as the suit exceeded the pecuniary jurisdiction of
the Civil Court (category II).

18.Immediately
on 25.6.2003, the appellant presented the plaint in the Court of 6th Additional
District Judge, Indore along with an application under Section 14 of the Limitation
Act, praying for exclusion of time spent in prosecuting the suit in the Court
of 7th Civil Judge Class II, Indore (i.e. from 11.2.1991 to 23.6.2003). The plaint
was transferred to the 19th Additional District Judge, Indore and was
registered as COS No. 6A/2003.

19.Before
the trial court, the appellant contended that on 11.2.1991, while instituting
the suit, it had not sought the relief of specific performance in view of the
fact that no exemption under Section 20 of Urban Land Ceiling Act (hereinafter,
`the Act') was obtained in respect of suit land. However, the said contention was
rejected by the Trial Court on 23.8.2004 by a detailed order and the suit was dismissed.
The trial court also dismissed the application under Section 14 of the
Limitation Act filed by the plaintiff (appellant herein) praying for exclusion
of time from 11.2.1991 to 23.6.2003.

20.Aggrieved
thereby, the appellant filed a writ petition before the High Court, which was
treated as Appeal No. 142/2005. The High Court, vide its impugned judgment dated
10.8.2007, dismissed the appellant's appeal.

21.Assailing
the judgment of the High Court, the learned Counsel for the appellant urged
that the agreement for sale, dated 31.3.1976, was acted upon by all the vendors
including the first respondent. It was specifically urged that the first respondent
participated and cooperated with the appellant in all legal proceedings in respect
of the said land wherein the first respondent took the stand that the land in question
has been agreed to be sold to the appellant for valuable consideration and that
the appellant has been put in possession of the same. This Court therefore,
should not allow the appellant to approbate and reprobate by taking a completely
different stand in the public notice which was published by him in Dainik
Bhaskar. In support of such contention, the learned counsel relied on a few
judgments.

22.Reliance
was first placed on the judgment of this Court in the case of C. Beepathumma
& Ors. v. V.S. Kadambolithaya & Ors., reported in (1964) 5 SCR 836. The
learned Counsel relied on the doctrine of election, by referring to Maitland's Lectures
on Equity, as also on Leading Cases on Equity by White and Tudor, considered by
this Court in page 850 of the report. In the aforesaid case, this Court was explaining
the doctrine of election that prohibits a person from taking inconsistent stand
in connection with certain documents. It may be noted that neither before the
Trial Court nor the High Court, did the appellant advance this argument. Apart
from that, in the notice dated 3.2.1991, the first respondent clearly stated
that the agreement of sale between him and the appellant stood cancelled and
the first respondent asserted his title over the plot of land in question.

23.Under
the aforesaid circumstances, the crucial question is whether the appellant has
a cause of action to file a suit for specific performance. In our judgment, the
refusal by the first respondent to acknowledge the right of the appellant over
the land in its public notice dated 3.2.1991 definitely furnishes the appellant
with a cause of action to file a suit for Specific Performance.

24.If
the appellant had filed such a suit, it could in the said suit, have questioned
the action of the first respondent as blowing hot and cold. But it has not
filed such a suit within the period of limitation prescribed for filing such a
suit.

25.Therefore,
the principles of the law of election, discussed in C. Beepathumma (supra) in a
totally different factual context, are of no assistance to the appellant in
this case.

26.The
other decision on which reliance was placed by the learned Counsel for the
appellant was rendered in the case of New Bihar Biri Leaves Co. & Ors. v.
State of Bihar & Ors. Reported in (1981) 1 SCC 537. The same principles of approbation
and reprobation have been discussed in paragraph 48. In the said case, this
Court invoked the said principles to disapprove the actions of the petitioner
who participated in a public auction by accepting its terms but later on sought
to impugn them as violative of Articles 14 and 19(1)(g) of the Constitution. In
the present case, the factual situation totally different and the appellants
have not filed any suit for Specific Performance against the first respondent within
the period of limitation.

27.In
this context, the provision of Article 54 of the Limitation Act is very
relevant. The period of limitation prescribed in Article 54 for filing a suit
for specific performance is three years from the date fixed for the
performance, or if no such date is fixed, when the plaintiff has notice that
performance is refused.

28.Here
admittedly, no date has been fixed for performance in the agreement for sale
entered between the parties in 1976. But definitely by its notice dated
3.2.1991, the first respondent has clearly made its intentions clear about refusing
the performance of the agreement and cancelled the agreement.

29.The
appellant, on noticing the same, filed a suit on 11.2.1991 but he did not
include the plea of Specific Performance. The appellant wanted to defend this
action by referring to two facts- (i) there was an acquisition proceeding over
the said land under the Land Acquisition Act and (ii) in view of the provisions
of the Ceiling Act, the appellant could not have made the prayer for Specific
Performance.

30.The
aforesaid purported justification of the appellant is not tenable in law. If
the alleged statutory bar referred to by the appellant stood in its way to file
a suit for Specific Performance, the same would also be a bar to the suit which
it had filed claiming declaration of title and injunction.

31.In
fact, a suit for Specific Performance could have been easily filed subject to
the provision of Section 20 of the Ceiling Act. Similar questions came up for consideration
before a Full Bench of Gujarat High Court in the case of Shah Jitendra Nanalal v.
Patel Lallubhai Ishverbhai [AIR 1984 Guj 145]. The Full Bench held that a suit
for Specific Performance could be filed despite the provisions of the Ceiling Act.
A suit for Specific Performance in respect of vacant land in excess of ceiling
limit can be filed and a conditional decree can be passed for Specific
Performance, subject to exemption being obtained under Section 20 of the Act.
(Paras 11- 13)

32.We
are in respectful agreement with the views of the Full Bench in the
abovementioned decision and the principles decided therein are attracted here.

33.This
Court is, therefore, of the opinion that the appellant had the cause of action
to sue for Specific Performance in 1991 but he omitted to do so. Having done that,
he should not be allowed to sue on that cause of action which he omitted to include
when he filed his suit. This Court may consider its omission to include the relief
of Specific Performance in the suit which it filed when it had cause of action
to sue for Specific Performance as relinquishment of that part of its claim.
The suit filed by appellant, therefore, is hit by the provisions of Order 2 Rule
2 of the Civil Procedure Code.

34.Though
the appellant has not subsequently filed a second suit, as to bring his case
squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2
Rule 2, which are also based on public policy, are attracted in the facts of
this case.

35.Even
though the prayer for amendment to include the relief of specific performance was
made about 11 years after the filing the suit, and the same was allowed after 12
years of the filing of the suit, such an amendment in the facts of the case
cannot relate back to the date of filing of the original plaint, in view of the
clear bar under Article 54 of the Limitation Act.

36.Here
in this case, the inclusion of the plea of Specific Performance by way of amendment
virtually alters the character of the suit, and its pecuniary jurisdiction had
gone up and the plaint had to be transferred to a different court.

37.This
Court held in Vishwambhar & Ors. v. Laxminarayan & Anr. reported in
(2001) 6 SCC 163, if as a result of allowing the amendment, the basis of the
suit is changed, such amendment even though allowed, cannot relate back to the date
of filing the suit to cure the defect of limitation. (Para 9 at pg. 168-9) Those
principles are applicable to the present case.

38.In
K. Raheja Constructions Ltd. & Anr. v. Alliance Ministries & Ors. reported
in 1995 Suppl.(3) SCC 17, this court held that an application for amendment
filed 7 years after the filing of the suit to include the plea of Specific Performance,
would not defeat the valuable rights of limitation accruing to the other side.
In that case, the factual position was somewhat similar to the present case and
this Court held that when a plea for Specific Performance was not included in the
original suit, it could not be included after a period of 7 years having regard
to Article 54 of the Limitation Act. (Para 4 at g.18-19).

39.For
the reasons aforesaid, this court is of the view that the plea of specific performance,
which is a discretionary relief, cannot be granted to the appellant in this case.
The Court below and the High Court were correct in their reasoning in dismissing
the suit and the first appeal respectively.

40.The
appeal, therefore, is dismissed. The parties are left to bear their own costs.